Competition authorities in Germany and the
United States today highlighted the fundamental role that Free
Software plays for competition in the software market. After
several months of discussions, the US Department of Justice
(DOJ) and the German Federal Competition Office (FCO) have
allowed a consortium of Microsoft, Oracle, Apple and EMC to
acquire 882 patents from Novell only subject to conditions
clearly intended to prevent their use against Free Software
players.

"This is an historic step", says Karsten Gerloff, President of the
Free Software Foundation Europe, which was involved in the FCO
investigation since the beginning. "The regulators acknowledge that
Free Software is crucial to competition; that patent aggression can
well be anticompetitive behaviour; and that fear, uncertainty and
doubt serve to push smaller competitors out of the market."

Parallels to Microsoft case - no patent privilege

"FSFE has been highlighting the danger of software patents for a
decade," says FSFE's legal counsel Carlo Piana. In the present
transaction, patents play a similar role as they did in the European
Commission's antitrust proceedings against Microsoft. Microsoft was
forced to disclose its secret protocols, but refused to make them
available under conditions that would allow their use in GPL-licensed
Free Software. FSFE is glad to see that conversely in this situation
antitrust authorities on both sides of the Atlantic are recognising
the power of copyleft Free Software licenses to preserve competition.

The decisions by the FCO and the DOJ are also an acknowledgement that
regulatory intervention can be necessary to overcome vendor lock-in
and create a level playing field for all market participants. "Patents
are not an excuse to avoid antitrust scrutiny. Today's announcements
make that clear as daylight" says Piana. In a hearing at the European
Court of Justice next month, FSFE will state its objections to
Microsoft's strategy of using patents to limit competition, as
Microsoft is appealing the fine of 899 million Euro imposed by the
Commission.

FSFE will carefully review the actual decisions as they become
available. "Today's announcements point in a very interesting
direction. It is a success for the intense work done by FSFE and
others, such as the Free Software Foundation and the Open Source
Initiative. But the conditions we've seen are no panacea. The devil
will be in the details," says Gerloff. Intense monitoring by the
competition authorities will be required to ensure that the conditions
for the transaction will have the intended effect.